Beckett v. Cuenin

Bissell, C. The errors contained in this record leave no basis upon which the judgment can be sustained. The service was made by publication, and the order therefor was entered upon the affidavit which is set forth in the statement. It is an established principle in all courts that the method of acquiring jurisdiction by publication is in derogation of the common law, and that the statutory requirements must be successively and accurately taken in order to confer upon the court jurisdiction over the defendant. This principle has been so often decided and so universally declared that it is wholly unnecessary to cite authorities in support of the proposition. The application of this rule precludes any successful defense of the order of publication which was entered by the county coux-t. To justify the making of the order, the plaintiff was bound under section 4A of the code to file an affidavit by which it should appear that a cause of action existed against the defendants. No such showing was made in this case, according to any reasonable construction of the section. The' affidavit does not state that any cause of action exists in favor of the plaintiff, or against the defendants, nor is this fact otherwise made“affirmatively to appear in it. It sets up that the action is brought to recover the sum of $1,120.97 upon two promissory notes, which are described as to the date of their execution, but it does not state, either that the defendants were the makers of those two notes, or the guarantors thereof against whom a right of action existed in favor of the plaintiff, or that they were the payees and subsequent indorsers, or indorsers thereof and not payees, or that the plaintiffs were the owners and holders of the [285] notes. The affidavit states no cause of action whatsoever against these two defendants, or' either of them, upon the two notes as described. Under these circumstances it is wholly impossible to uphold the jurisdiction of the court in the premises. Ricketson v. Richardson, 26 Cal. 149; Yolo Co. v. Knight, 70 Cal. 432; Slocum v. Slocum, 17 Wis. 155; Towsley v. McDonald, 32 Barb. 604; Shields v. Miller, 9 Kan. 390; Atkins v. Atkins, 9 Neb. 191-194. It is exceedingly doubtful whether there is any such showing of non-residence as would entitle the plaintiff to proceed to obtain service by publication; but the insufficiency of the affidavit renders it unnecessary to put the decision upon this ground. The failure to file a complaint prior to the rendition of judgment, or at all, is a fatal irregularity. According to the practice, as it existed at that time, it was necessary that the complaint should be filed before the entry of judgment. Section 9 of an act to amend, etc., Session Laws 1885, p. 132. "Whether the failure to file the complaint prior to the entry of judgment would of itself have been fatal to the validity of the judgment, or whether upon application for the purpose prior to the appeal the court could have made an order permitting it to be done, it is not necessary to consider. No such application was made, nor was any complaint ever filed. On general principles, regardless of this statute, it must be held that a complaint, or some written statement of the cause of action, is absolutely indispensable to the maintenance of. a judgment recovered in a court of record. As it was well put in Young v. Rosenbaum, 39 Cal. 654: “ It would seem impossible to maintain in any forum a judgment unless it was based upon a complaint or a statement of the cause of action of the party in whose favor it was rendered.” These errors render it impossible to maintain the judgment. Since the cause must be reversed, it is needless to discuss the question whether it should be reversed because it was entered for more than the sum which the plaintiff [286] was entitled to recover according to the action as he instituted it, or whether he should ■ be permitted to remit the excess, and the judgment be upheld for the balance. The judgment should be reversed, and the cause remanded for further proceedings. Richmond and Keed, CO., concur. Per Curiam. Por the reasons stated in the foregoing opinion the judgment below is reversed. Reversed.